q308exhibit10-56.htm


    
      EXHIBIT 10.56


      


      [***]
DENOTES CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT


      


      Micron
NTC CONFIDENTIAL



      TECHNOLOGY
TRANSFER AND LICENSE AGREEMENT

       

      


       

      This
TECHNOLOGY TRANSFER AND LICENSE
AGREEMENT (this “Agreement”), is made and
entered into as of this 21st day of April, 2008 (“Effective Date”), by and
between Micron Technology, Inc, a Delaware corporation (“Micron”), and Nanya Technology
Corporation (Nanya
Technology Corporation [Translation from Chinese]), a company
incorporated under the laws of the Republic of China (“NTC”).  (Micron and
NTC are referred to in this Agreement individually as a “Party” and collectively as the
“Parties”).

       

      RECITALS

       

      A.           Micron
currently designs and manufactures Stack DRAM Products (as defined herein) and
develops Process Technology (as defined herein) therefor. NTC and Micron desire
to engage in joint development and/or optimization of Process Technology for
process nodes of 68 nm, 50nm  and other dimensions and joint
development of Stack DRAM Designs for Stack DRAM Products to be manufactured on
such process nodes, as the Parties may agree in the JDP Agreement.

       

      B.        
   To effectuate their desires, Micron will license NTC under
Background IP for the design, development and manufacture of certain Stack DRAM
Products.  Micron and NTC will also transfer each other Foundational
Know-How and license each other thereunder for the design, development and
manufacture of certain Stack DRAM Products.

       

      AGREEMENT

       

      NOW,
THEREFORE, in consideration of the mutual promises and agreements herein set
forth, the Parties, intending to be legally bound, hereby agree as
follows.

       

      ARTICLE
1

       

      DEFINITIONS; CERTAIN
INTERPRETATIVE MATTERS

       

      1.1           Definitions.

       

      “Adjusted Revenues” means
[***].

       

      “Affiliate” means, with respect
to any specified Person, any other Person that directly or indirectly, including
through one or more intermediaries, controls, or is controlled by, or is under
common control with such specified Person; and the term “affiliated” has a meaning
correlative to the foregoing.

      
        
          
            
               

               

              DLI-6195533v3


            

             


          

          
             


            
              

            

          

          
             


            
              Micron
NTC CONFIDENTIAL

              


            

          

        

      

      “Agreement” shall have the
meaning set forth in the preamble to this Agreement.

       

      “Applicable Law” means any
applicable laws, statutes, rules, regulations, ordinances, orders, codes,
arbitration awards, judgments, decrees or other legal requirements of any
Governmental Entity.

       

      “Background IP” means
[***].

       

      “BEOL Costs” means
[***].

       

      “Burn-In” means
[***].

       

      “Burn-In Document” means a
document that describes the specification of voltage and test pattern settings
in the Burn-In test program.  The Burn-In Document also describes the
methodology of how the voltage and test pattern settings are
optimized.

       

      “Closing” means the remittance
by NTC and MNL of the first capital contribution to the Joint Venture Company as
set forth in Section
2.6 of the Joint Venture Agreement.

       

      “Commodity Stack DRAM Products”
means Stack DRAM Products for system main memory for computing or Mobile
Devices, in each case that are fully compliant with one or more Industry
Standard(s).

       

      “Confidential Information”
means that information described in Section 8.1 deemed to
be “Confidential Information” under the Mutual Confidentiality
Agreement.

       

      “Contractor” means a Third
Party who (a) is contracted by a Party in connection with work to be conducted
by such Party under a SOW, (b) has agreed to assign to such contracting Party
all rights in and to any inventions, discoveries, improvements, processes,
copyrightable works, mask works, trade secrets or other technology that are
conceived or first reduced to practice, whether patentable or not, as a result
of any performance by such Third Party of any obligations of such Party under a
SOW, and all Patent Rights, IP Rights and other intellectual property rights in
the foregoing, and (c) has agreed to grant a license to such contracting Party,
with the right to sublicense of sufficient scope that includes the other Party,
under all Patent Rights, IP Rights and other rights of the Third Party
reasonably necessary for such contracting Party and the other Party to exploit
the work product created by the Third Party consistent with the rights granted
by the contracting Party to the other Party under the Joint Venture
Documents.

       

      “Control” (whether capitalized
or not) means the power or authority, whether exercised or not, to direct the
business, management and policies of a Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise, which
power or authority shall conclusively be presumed to exist upon possession of
beneficial ownership or power to direct the vote of [***] of the votes entitled
to be cast at a meeting of the members, shareholders or other equity holders of
such Person or power to control the composition of a majority of the board of
directors or like governing body of such Person; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.

       

      “Design Qualification” means,
[***].

      
        
          
            
               

               

              DLI-6195533v3


            

             


          

          
            2

            
              

            

          

          
             


            
              Micron
NTC CONFIDENTIAL

              


            

          

        

      

      “Design SOW” means
[***].

       

      “DRAM Product” means any
stand-alone semiconductor device that is a dynamic random access memory device
and that is designed or developed primarily for the function of storing data, in
die, wafer or package form.

       

      “Effective Date” shall have the
meaning set forth in the preamble to this Agreement.

       

      “Existing Entity” means
[***].

       

      “Force Majeure Event” means the
occurrence of an event or circumstance beyond the reasonable control of a Party
and includes, without limitation, (a) explosions, fires, flood, earthquakes,
catastrophic weather conditions, or other elements of nature or acts of God; (b)
acts of war (declared or undeclared), acts of terrorism, insurrection, riots,
civil disorders, rebellion or sabotage; (c) acts of federal, state, local or
foreign Governmental Entity; (d) labor disputes, lockouts, strikes or other
industrial action, whether direct or indirect and whether lawful or unlawful;
(e) failures or fluctuations in electrical power or telecommunications service
or equipment; and (f) delays caused by the other Party or third-party
nonperformance (except for delays caused by a Party’s Contractors,
subcontractors or agents).

       

      “Foundational Know-How” means,
with respect to each Party, [***].

       

      “Foundry Customer” means a
Third Party customer for Stack DRAM Products for [***].

       

      “Foundry Customer Adjusted
Revenues” means [***].

       

      “Foundry Customer Products”
means [***].

       

      “FT” means [***].

       

      “GAAP” means, with respect to
Micron, United States generally accepted accounting principles, and with respect
to NTC, Republic of China generally accepted accounting principles, in each
case, as consistently applied by the Party for all periods at
issue.

       

      “Gross Revenues” means,
[***].

       

      “Governmental Entity” means any
governmental authority or entity, including any agency, board, bureau,
commission, court, municipality, department, subdivision or instrumentality
thereof, or any arbitrator or arbitration panel.

       

      “Industry Standard” means the
documented technical specifications that set forth the pertinent technical and
operating characteristics of a DRAM Product if such specifications are publicly
available for use by DRAM manufacturers, and if [***].

       

      “IP Rights” means copyrights,
rights in trade secrets, Mask Work Rights and pending applications or
registrations of any of the foregoing anywhere in the world.  The term
“IP Rights” does not include any Patent Rights or rights in
trademarks.

      
        
          
            
               

               

              DLI-6195533v3


            

             


          

          
            3

            
              

            

          

          
             


            
              Micron
NTC CONFIDENTIAL

              


            

          

        

      

      “JDP Agreement” means that
certain Joint Development Program Agreement by and between Micron and NTC
effective as of the Effective Date referred to on Schedule 2.1 of the
Master Agreement Disclosure Letter.

       

      “JDP Committee” means the
committee formed and operated by Micron and NTC to govern the performance of the
Parties under the JDP Agreement.

       

      “JDP Inventions” means all
discoveries, improvements, inventions, developments, processes or other
technology, whether patentable or not, that is/are conceived by one or more
Representatives of one or more of the Parties in the course of activities
conducted under the JDP Agreement.

       

      “JDP IP Royalties” means
[***].

       

      “JDP Process Node” means any
Primary Process Node or Optimized Process Node resulting from the research and
development activities of the Parties pursuant the JDP Agreement.

       

      “JDP Work Product” means
[***].

       

      “Joint Venture Agreement” means
that certain Joint Venture Agreement by and between NTC and MNL effective as of
the Effective Date referred to on Schedule 2.1 of the
Master Agreement Disclosure Letter.

       

      “Joint Venture Company” means
the company formed and operated in accordance with the Joint Venture
Documents.

       

      “Joint Venture Company Joinder”
means that certain Joinder of the Joint Venture Company to the Mutual
Confidentiality Agreement.

       

      “Joint Venture Documents” means
the Master Agreement and each of the agreements listed on Schedules 2.1 through
2.5 of the
Master Agreement Disclosure Letter.

       

       “Mask Data Processing” means
[***].

       

      “Mask Work Rights" means rights
under the United States Semiconductor Chip Protection Act of 1984, as amended
from time to time, or under any similar equivalent laws in countries other than
the United States.

       

      “Master Agreement” means that
certain Master Agreement by and between NTC and Micron dated as of the Effective
Date.

       

      “Master Agreement Disclosure
Letter” means that certain Master Agreement Disclosure Letter by and
between NTC and Micron dated as of Effective Date containing the Schedules
required by the Master Agreement.

       

      “Micron” shall have the
meaning set forth in the preamble to this Agreement.

      
        
          
            
               

               

              DLI-6195533v3


            

             


          

          
            4

            
              

            

          

          
             


            
              Micron
NTC CONFIDENTIAL

              


            

          

        

      

      “Micron IP Royalties” mean any
royalties owed by NTC to Micron under the TTLA 68-50.

       

      “Micron Qualified Fab” means
[***].

       

      “Micron Products” means
[***].

       

      “MNL” means Micron
Semiconductor B.V., a private limited liability company organized under the laws
of the Netherlands.

       

       “Mobile Device” means a
handheld or portable device using as its main memory one or more Stack DRAM
Products that is/are compliant with an Industry Standard [***].

       

      “Mutual Confidentiality
Agreement” means (i) prior to the Closing, that certain Mutual
Confidentiality Agreement among NTC, Micron and MNL referred to on Schedule 2.1 of the
Master Agreement Disclosure Letter, and (ii) following the Closing, that certain
Mutual Confidentiality Agreement among NTC, Micron and MNL referred to on Schedule 2.1 of the
Master Agreement Disclosure Letter, as joined by the Joint Venture Company
through the Joint Venture Company Joinder.

       

      “NTC” shall have the meaning
set forth in the preamble to this Agreement.

       

      “NTC Products” means
[***].

       

      “NTC Qualified Fab” means
[***].

       

      “OPC” means optical proximity
correction of the circuit layout patterns, which is important in Mask Data
Processing.

       

      “Optimized Process Node” means
[***].

       

      “Party” and “Parties” shall have the
meaning set forth in the preamble to this Agreement.

       

      “Patent Rights” means all
rights associated with any and all issued and unexpired patents and pending
patent applications in any country in the world, together with any and all
divisionals, continuations, continuations-in-part, reissues, reexaminations,
extensions, foreign counterparts or equivalents of any of the foregoing,
wherever and whenever existing.

       

      “Person” means any natural
person, corporation, joint stock company, limited liability company,
association, partnership, firm, joint venture, organization, business, trust,
estate or any other entity or organization of any kind or
character.

       

      “Primary Process Node” means
[***].

       

      “Probe Testing” means testing,
using a wafer test program as set forth in the applicable specifications, of a
wafer that has completed all processing steps deemed necessary to complete the
creation of the desired Stack DRAM integrated circuits in the die on such wafer,
the purpose 

      
        
          
            
               

               

              DLI-6195533v3


            

             


          

          
            5

            
              

            

          

          
             


            
              Micron
NTC CONFIDENTIAL

              


            

          

        

      

      of which
test is to determine how many and which of the die meet the applicable criteria
for such die set forth in the specifications.

       

      “Process Development
Contractor” means [***].

       

      “Process Node” means
[***].

       

      “Process Qualification” means,
[***].

       

      “Process SOW” means
[***].

       

      “Process Technology” means
that process technology developed before expiration of the Term and utilized in
the manufacture of Stack DRAM wafers, including Probe Testing and technology
developed through Product Engineering thereof, regardless of the form in
which any of the foregoing is stored, but excluding any Patent Rights and any
technology, trade secrets or know-how that relate to and are used in any
back-end operations (after Probe Testing).

       

      “Product Engineering” means any
one or more of the engineering activities described on Schedule 7 to the JDP
Agreement as applied to Stack DRAM Products or Stack DRAM Modules.

       

      “RASL” means that certain
Restricted Activities Side Letter agreement by and between the Parties effective
as of the Effective Date referred to on Schedule 2.1 to the
Master Agreement Disclosure Letter.

       

      “Recoverable Taxes” shall have
the meaning set forth in Section
4.7(a).

       

      “Representative” means with
respect to a Party, any director, officer, employee, agent or Contractor of such
Party or a professional advisor to such Party, such as an attorney, banker or
financial advisor of such Party who is under an obligation of confidentiality to
such Party by contract or ethical rules applicable to such Person.

       

      “Royalties” means
[***].

       

      “Software” means computer
program instruction code, whether in human-readable source code form,
machine-executable binary form, firmware, scripts, interpretive text, or
otherwise.  The term “Software” does not include databases and other
information stored in electronic form, other than executable instruction codes
or source code that is intended to be compiled into executable instruction
codes.

       

      “SOW” means a statement of the
work that describes research and development work to be performed under the JDP
Agreement and that has been adopted by the JDP Committee pursuant to the
procedures set forth therein.

       

      “Stack DRAM” means dynamic
random access memory cell that functions by using a capacitor arrayed
predominantly above the semiconductor substrate.

      
        
          
            
               

               

              DLI-6195533v3


            

             


          

          
            6

            
              

            

          

          
             


            
              Micron
NTC CONFIDENTIAL

              


            

          

        

      

      “Stack DRAM Design” means, with respect to
a Stack DRAM Product, the corresponding design components, materials and
information listed on Schedule 3 of
the JDP Agreement or as otherwise determined by the JDP Committee in a
SOW.

       

      “Stack DRAM Module” means one
or more Stack DRAM Products in a JEDEC-compliant package or module (whether as
part of a SIMM, DIMM, multi-chip package, memory card or other memory module or
package).

       

      “Stack DRAM Product” means any
memory comprising Stack DRAM, whether in die or wafer form.

       

      “Subsidiary” means, with respect to any specified Person, any other
Person that, directly or indirectly, including through one or more
intermediaries, is controlled by such specified Person. 

       

      “Tax” or “Taxes” means any federal,
state, local or foreign net income, gross income, gross receipts, sales, use ad
valorem, transfer, franchise, profits, service, service use, withholding,
payroll, employment, excise, severance, stamp, occupation, premium, property,
customs, duties or other type of fiscal levy and all other taxes, governmental
fees, registration fees, assessments or charges of any kind whatsoever, together
with any interest and penalties, additions to tax or additional amounts imposed
or assessed with respect thereto.

       

      “Taxing Authority” means any
Governmental Entity exercising any authority to impose, regulate or administer
the imposition of Taxes.

       

      “Term” shall have the meaning
set forth in Section 9.1.

       

      “Third Party” means any Person
other than NTC or Micron.

       

      “TTLA 68-50” means that certain
Technology Transfer and License Agreement for 68-50nm Process Nodes by and
between the Parties dated as of the Effective Date.

       

      1.2           Certain Interpretive
Matters.

       

      (a)           Unless
the context requires otherwise, (1) all references to Sections, Articles,
Exhibits, Appendices or Schedules are to Sections, Articles, Exhibits,
Appendices or Schedules of or to this Agreement, (2) each accounting term
not otherwise defined in this Agreement has the meaning commonly applied to it
in accordance with GAAP, (3) words in the singular include the plural and
vice versa, (4) the term “including” means “including
without limitation,” and (5) the terms “herein,” “hereof,” “hereunder” and words of
similar import shall mean references to this Agreement as a whole and not to any
individual section or portion hereof.  Unless otherwise denoted, all
references to $ or dollar amounts will be to lawful currency of the United
States of America.  All references to “day” or “days” will mean calendar
days.

       

      (b)           No
provision of this Agreement will be interpreted in favor of, or against, either
Party by reason of the extent to which (1) such Party or its counsel
participated in the 

      
        
          
            
               

               

              DLI-6195533v3


            

             


          

          
            7

            
              

            

          

          
             


            
              Micron
NTC CONFIDENTIAL

              


            

          

        

      

      drafting
thereof or (2) any such provision is inconsistent with any prior draft of this
Agreement or such provision.

       

      ARTICLE
2

       

      LICENSES

       

      2.1           Micron Grant to
NTC.  Subject to the terms and conditions of this Agreement and
the applicable terms of the Joint Venture Documents, Micron grants to NTC a
[***] license to [***]:

       

      (a)           [***];

       

      (b)          
[***];

       

      (c)           [***];

       

      (d)          
[***]; and

       

      (e)           to
use, sell, offer to sell, distribute, import, export and/or otherwise dispose of
[***] manufactured in accordance with the foregoing.

       

      2.2           NTC Grant to
Micron.   Subject to the terms and conditions of this
Agreement and the applicable terms of the Joint Venture Documents, NTC grants to
Micron a [***] license to [***]:

       

      (a)           [***];

       

      (b)           [***];

       

      (c)           [***];

       

      (d)           [***];
and

       

      (e)           to
use, sell, offer to sell, distribute, import, export and/or otherwise dispose of
[***] manufactured in accordance with the foregoing.

       

      2.3         Rights Following Termination
of JDP Agreement.  Upon termination of the JDP Agreement,
[***].

       

      2.4           Reservations of
Rights.

       

      (a)           Except
as expressly set forth in Section 2.1,
[***].

       

      (b)           [***].

      
        
          
            
               

               

              DLI-6195533v3


            

             


          

          
            8

            
              

            

          

          
             


            
              Micron
NTC CONFIDENTIAL

              


            

          

        

      

      ARTICLE
3

       

      SERVICES

       

      3.1           Assistance For Qualification
of Second Source for Mask Purchases.  As reasonably requested
by NTC and to the extent fulfilling such request would not cause disruption of
Micron’s operations, Micron will use commercially reasonable efforts to assist
NTC in providing the JDP Committee the information necessary for it to qualify a
second source [***].

       

      3.2           [***]     As
reasonably requested by NTC and to the extent fulfilling such request would not
cause disruption of Micron’s operations, [***].

       

      ARTICLE
4

       

      PAYMENTS

       

      4.1           Royalties for JDP Process
Nodes of [***].

       

      (a)           [***]

       

      (b)           [***]

       

      (c)           [***]

       

      4.2           [***]

       

      4.3           Royalty Reporting and
Payment.  Within sixty (60) days following the end of [***] for
so long as any Royalties are payable hereunder, NTC shall submit to Micron a
written report, which is certified by NTC’s chief financial officer as complete
and correct, setting forth in reasonable detail, [***].  NTC shall pay
to Micron all Royalties due for such [***] contemporaneously with the submission
of such report in accordance with Section
4.5.  NTC shall cause each of its Affiliates who dispose of
Stack DRAM Product in a manner that causes Royalties to be due to provide a
written report, which is certified by the Affiliate’s chief financial officer as
complete and correct, setting forth in reasonable detail such Affiliate’s
dispositions of Stack DRAM Product and corresponding Royalties for the [***]
that is the subject of each of the foregoing reports of NTC.  NTC
shall provide a copy of each report from an Affiliate to Micron with submission
of NTC’s report.

       

      4.4           Audit Rights and
Records.  Micron shall have the right to have an independent
Third Party auditor audit [***], upon reasonable advance written notice, during
normal business hours and on a confidential basis subject to the Mutual
Confidentiality Agreement, all records and accounts of NTC relevant to the
calculation of Royalties in the [***] of the audit; provided however, NTC shall
not be obligated to provide any records and book of accounts existing prior to
the Effective Date.  NTC shall, and shall cause its Affiliates to, for
at least a period of [***] of their creation, keep complete and accurate records
and books of accounts concerning all transactions relevant to calculation of
Royalties in sufficient detail to enable a complete and detailed audit to be
conducted.  NTC shall cause any Affiliate that disposes of Stack DRAM
Product in a manner that causes Royalties to be due to keep records and permit
an audit of such records consistent with the obligations of NTC
hereunder.  [***]

      
        
          
            
               

               

              DLI-6195533v3


            

             


          

          
            9

            
              

            

          

          
             


            
              Micron
NTC CONFIDENTIAL

              


            

          

        

      

      4.5           Reports and Invoices;
Payments.

       

      (a)           All
reports and invoices under this Agreement may be sent by any method described in
Section 10.1 or
electronically with hardcopy confirmation sent promptly thereafter by any method
described in Section
10.1.  Such reports and invoices should be sent to the
following contacts or such other contact as may be specified hereafter pursuant
to a notice sent in accordance with Section
10.1:

       

      (i)           Invoices to
NTC:

       

      [***]

      Nanya
Technology Corp.

      Hwa-Ya
Technology Park 669, Fuhsing 3 Rd. Kueishan, Taoyuan, Taiwan, R. O.
C.

      Fax:                      [***]

      E-Mail:                [***]

      


      (ii)           Reports to
Micron:

       

      [***]

      8000 S.
Federal Way

      P.O. Box
6, MS 1-720

      Boise,
Idaho, USA 83707-0006

      Fax:                      [***]

      Email:                   [***]

      


      (b)           All
amounts owed by a Party under this Agreement are stated, calculated and shall be
paid in United States Dollars ($ U.S.).

       

      (c)           Payment
is due on all amounts properly invoiced within thirty (30) days of receipt of
invoice.  All payments made under this Agreement shall be made by wire
transfer to a Micron bank account designated by the following person or by such
other person designated by notice:

       

      Payments to
Micron:

      


      [***]

      8000 S.
Federal Way

      P.O. Box
6, MS 1-107

      Boise,
Idaho, USA 83707-0006

      Fax:                      [***]

      Email:                   [***]

      


      4.6           Interest.  Any
amounts payable to Micron hereunder and not paid within the time period provided
shall accrue interest, from the time such payment was due until the time payment
is actually received, at the rate of [***] or the highest rate permitted by
Applicable Law, whichever is lower.

      
        
          
            
               

               

              DLI-6195533v3


            

             


          

          
            10

            
              

            

          

          
             


            
              Micron
NTC CONFIDENTIAL

              


            

          

        

      

      4.7           Taxes.

       

      (a)           All
sales, use and other transfer Taxes imposed directly on or solely as a result of
the services, rights licensed or technology transfers or the payments therefor
provided herein shall be stated separately on the service provider’s, licensor’s
or technology transferor’s invoice, collected from the service recipient,
licensee or technology transferee and shall be remitted by service provider,
licensor or technology transferor to the appropriate Taxing Authority (“Recoverable Taxes”), unless
the service recipient, licensee or technology transferee provides valid proof of
tax exemption prior to the Effective Date or otherwise as permitted by law prior
to the time the service provider, licensor or technology transferor is required
to pay such taxes to the appropriate Taxing Authority.  When property
is delivered, rights granted and/or services are provided or the benefit of
services occurs within jurisdictions in which collection and remittance of Taxes
by the service recipient, licensee or technology transferee is required by law,
the service recipient, licensee or technology transferee shall have sole
responsibility for payment of said Taxes to the appropriate Taxing
Authority.  In the event any Taxes are Recoverable Taxes and the
service provider, licensor or technology transferor does not collect such Taxes
from the service recipient, licensee or technology transferee or pay such Taxes
to the appropriate Governmental Entity on a timely basis, and is subsequently
audited by any Taxing Authority, liability of the service recipient, licensee or
technology transferee will be limited to the Tax assessment for such Recoverable
Taxes, with no reimbursement for penalty or interest charges or other amounts
incurred in connection therewith.  Except as provided in Section 4.7(b), Taxes
other than Recoverable Taxes shall not be reimbursed by the service recipient,
licensee or technology transferee, and each Party is responsible for its own
respective income Taxes (including franchise and other Taxes based on net income
or a variation thereof), Taxes based upon gross revenues or receipts, and Taxes
with respect to general overhead, including but not limited to business and
occupation Taxes, and such Taxes shall not be Recoverable Taxes.

       

      (b)           In
the event that the service recipient, licensee or technology transferee is
prohibited by Applicable Law from making payments to the service provider,
licensor or technology transferor unless the service recipient, licensee or
technology transferee deducts or withholds Taxes therefrom and remits such Taxes
to the local Taxing Authority, [***].

       

      4.8           [***].  Notwithstanding
anything to the contrary in this Agreement, if requested by Micron by notice in
accordance with Section 10.1, NTC
will [***] until notified by Micron in accordance with Section
10.1.

       

      ARTICLE
5

       

      OTHER INTELLECTUAL PROPERTY
MATTERS

       

      5.1           Intellectual Properties
Retained.  Nothing in this Agreement shall be construed to
transfer ownership of any intellectual property rights from one Party to another
Party.

       

      5.2           Cooperation In Claims Of
Patent Infringement.  [***]

      
        
          
            
               

               

              DLI-6195533v3


            

             


          

          
            11

            
              

            

          

          
             


            
              Micron
NTC CONFIDENTIAL

              


            

          

        

      

      ARTICLE
6

       

      WARRANTIES;
DISCLAIMERS

       

      6.1           No Implied Obligation or
Rights.  Nothing contained in this Agreement shall be
construed as:

       

      (a)           a
warranty or representation that any manufacture, sale, lease, use or other
disposition of any products based upon any of the IP Rights licensed or
technology transferred hereunder will be free from infringement,
misappropriation or other violation of any Patent Rights, IP Rights or other
intellectual property rights of any Person;

       

      (b)           an
agreement to bring or prosecute proceedings against Third Parties for
infringement, misappropriation or other violation of rights or conferring any
right to bring or prosecute proceedings against Third Parties for infringement,
misappropriation or other violation  of rights; or

       

      (c)           conferring
any right to use in advertising, publicity, or otherwise, any trademark, trade
name or names, or any contraction, abbreviation or simulation thereof, of either
Party.

       

      6.2           Third Party
Software.  Exploitation of any of the rights licensed or
technology transferred hereunder may require use of Software owned by a Third
Party and not subject to any license granted under any of the Joint Venture
Documents.  Nothing in this Agreement shall be construed as granting
to any Party, any right, title or interest in, to or under any Software owned by
any Third Party.  Except as may be specified otherwise in any of the
other Joint Venture Documents, any such Software so required is solely the
responsibility of the each of the Parties.  Moreover, should a Party
who transfers technology under this Agreement discover after such transfer that
it has provided Software to the other Party that it was not entitled to provide,
such providing Party shall promptly notify the other Party and the recipient
shall return such Software to the providing Party and not retain any copy
thereof.

       

      6.3           Disclaimer.  [***].

       

      6.4           Background
IP.  Micron represents and warrants to NTC that the Transferred
Technology transferred to NTC pursuant to Section 3.1 of the
TTLA 68-50 [***]

       

      ARTICLE
7

       

      LIMITATION OF
LIABILITY

       

      7.1           LIMITATION OF
LIABILITY.  [***]

       

      ARTICLE
8

       

      CONFIDENTIALITY

       

      8.1           Confidentiality
Obligations.  Subject to the rights expressly granted to the
Parties hereunder and any applicable restrictions under the other Joint Venture
Documents, all 

      
        
          
            
               

               

              DLI-6195533v3


            

             


          

          
            12

            
              

            

          

          
             


            
              Micron
NTC CONFIDENTIAL

              


            

          

        

      

      information
provided, disclosed or obtained in connection with this Agreement, the TTLA
68-50 or the performance of any of the Parties’ activities under this Agreement
or the TTLA 68-50 shall be deemed “Confidential Information” subject to all
applicable provisions of the Mutual Confidentiality Agreement.  The
terms and conditions of this Agreement and the TTLA 68-50 shall be considered
“Confidential Information” under the Mutual Confidentiality Agreement for which
Micron and  NTC shall be considered a “Receiving Party” under such
agreement.  The Parties acknowledge that Process Technology, JDP
Process Nodes, JDP Inventions, JDP Work Product and other information exchanged
pursuant to the JDP Agreement are subject to restrictions on disclosure set
forth therein.

       

      8.2           Additional Controls For
Certain Information.  To the extent any layout and schematics
data/databases, scribe line test patterns, internal architecture specifications,
test modes and configurations, or similarly sensitive information is provided to
a Party under this Agreement, such subject matter shall be stored solely on
secure servers and password protected, and such Party shall limit access to such
data exclusively to those of its Representatives who have a need to access such
data for the purposes of exercising its rights hereunder.

       

      8.3           Micron Background IP and
Foundational Know-How.

       

      [***]

       

      8.4           NTC Foundational
Know-How.

       

      (a)           [***]

       

      (b)           [***]

       

      (c)           [***]

       

      (d)           Should
Micron desire to engage the services of a Third Party to assist Micron in the
creation of a Stack DRAM Design, or portion thereof, [***].

       

      (e)           Micron
may [***].

       

      8.5           Conflicts.  To
the extent there is a conflict between this Agreement and the Mutual
Confidentiality Agreement, the terms of this Agreement shall
control.  To the extent there is a conflict between this Agreement and
the JDP Agreement, the JDP Agreement shall control.

       

      ARTICLE
9

       

      TERM AND
TERMINATION

       

      9.1           Term.  The
term of this Agreement commences on the Effective Date and continues in effect
until terminated by mutual agreement.  (The period from the Effective
Date until termination is the “Term”).

       

      9.2           Termination of
License.

      
        
          
            
               

               

              DLI-6195533v3


            

             


          

          
            13

            
              

            

          

          
             


            
              Micron
NTC CONFIDENTIAL

              


            

          

        

      

      (a)           [***] An inadvertent
disclosure by one Party or a Party’s Representative of the other Party’s
Confidential Information in violation of this Agreement or the Mutual
Confidentiality Agreement, as applicable, shall not be considered a material
breach of this Agreement provided that (i) such Party takes prompt action to
retract the disclosure and prevent further similar violations, and (ii) the
disclosure was not in intentional or willful disregard of the non-disclosure
obligations set forth in this Agreement or in the Mutual Confidentiality
Agreement.

       

      (b)           [***].

       

      9.3           Effects of
Termination.

       

      (a)           Termination
of this Agreement or a Party’s license hereunder shall not affect any of the
Parties’ respective rights accrued or obligations owed before
termination.  In addition, the following shall survive termination for
any reason:  Articles 1, 6, 7 and 10 and Sections 2.4, 4.3
through  4.7, 5.1, 8.1, 8.2, 8.3(b), 8.4(b), 8.5 and 9.3.

       

      (b)           Upon
termination of a Party’s license under this Agreement pursuant to Section 9.2(a), the
Party whose license was terminated shall:

       

      [***]

       

      (c)           Upon
termination of NTC’s license under this Agreement pursuant to Section 9.2(b), NTC
shall:

       

      [***]

       

      ARTICLE
10

       

      MISCELLANEOUS

       

      10.1         Notices.  All
notices and other communications hereunder shall be in writing and shall be
deemed given upon (a) transmitter’s confirmation of a receipt of a
facsimile transmission, (b) confirmed delivery by a standard overnight carrier
or when delivered by hand, or (c) delivery in person, addressed at the following
addresses (or at such other address for a party as shall be specified by like
notice):

       

      If to
NTC:                        
Nanya Technology Corporation

      Hwa-Ya Technology Park
669

      Fuhsing 3 RD. Kueishan

      Taoyuan, Taiwan, ROC

      Attention: Legal
Department

      Fax: 886.3.396.2226

      


      If to
Micron:                    Micron
Technology, Inc.

      8000 S. Federal Way

      Mail Stop 1-507

      Boise, ID 83716

      
        
          
            
               

               

              DLI-6195533v3


            

             


          

          
            14

            
              

            

          

          
             


            
              Micron
NTC CONFIDENTIAL

              


            

          

        

      

      Attention: General
Counsel

      Fax: 208.368.4537

      


      10.2         Waiver.  The
failure at any time of a Party to require performance by the other Party of any
responsibility or obligation required by this Agreement shall in no way affect a
Party’s right to require such performance at any time thereafter, nor shall the
waiver by a Party of a breach of any provision of this Agreement by the other
Party constitute a waiver of any other breach of the same or any other provision
nor constitute a waiver of the responsibility or obligation itself.

       

      10.3         Assignment.  [***]

       

      10.4         Third Party
Rights.  Nothing in this Agreement, whether express or implied,
is intended or shall be construed to confer, directly or indirectly, upon or
give to any Person, other than the Parties hereto, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any covenant, condition
or other provision contained herein.

       

      10.5         Force
Majeure.  The Parties shall be excused from any failure to
perform any obligation hereunder to the extent such failure is caused by a Force
Majeure Event.

       

      10.6         Choice of
Law.  This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of Delaware, USA, without
giving effect to the principles of conflict of laws thereof.

       

      10.7         Jurisdiction;
Venue.  Any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement shall be brought in a state or federal court of competent jurisdiction
located in the State of California, USA, and each of the Parties to this
Agreement hereby consents and submits to the exclusive jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
Applicable Law, any objection which it may now or hereafter have to the laying
of the venue of any such suit, action or proceeding in any such court or that
any such suit, action or proceeding which is brought in any such court has been
brought in an inconvenient forum.

       

      10.8         Headings.  The
headings of the Articles and Sections in this Agreement are provided for
convenience of reference only and shall not be deemed to constitute a part
hereof.

       

      10.9         Export
Control.  Each Party agrees that it will not
knowingly:  (a) export or re-export, directly or indirectly, any
technical data (as defined by the U.S. Export Administration Regulations)
provided by the other Party or (b) disclose such technical data for use in, or
export or re-export directly or indirectly, any direct product of such technical
data, including Software, to any destination to which such export or re-export
is restricted or prohibited by United States or non-United States law,
without obtaining prior authorization from the U.S. Department of Commerce and
other competent Government Entities to the extent required by Applicable
Laws.

       

      10.10       Entire
Agreement.  This Agreement, together with its Schedules and the
agreements and instruments expressly provided for herein, including the
applicable terms of the other Joint Venture Documents, constitute the entire
agreement of the Parties hereto with respect 

      
        
          
            
               

               

              DLI-6195533v3


            

             


          

          
            15

            
              

            

          

          
             


            
              Micron
NTC CONFIDENTIAL

              


            

          

        

      

      to the
subject matter hereof and supersede all prior agreements and understandings,
oral and written, between the Parties hereto with respect to the subject matter
hereof.

       

      10.11       Severability.  Should
any provision of this Agreement be deemed in contradiction with the laws of any
jurisdiction in which it is to be performed or unenforceable for any reason,
such provision shall be deemed null and void, but this Agreement shall remain in
full force in all other respects.  Should any provision of this
Agreement be or become ineffective because of changes in Applicable Laws or
interpretations thereof, or should this Agreement fail to include a provision
that is required as a matter of law, the validity of the other provisions of
this Agreement shall not be affected thereby.  If such circumstances
arise, the Parties hereto shall negotiate in good faith appropriate
modifications to this Agreement to reflect those changes that are required by
Applicable Law.

       

      10.12      
Counterparts.  This
Agreement may be executed in several counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument.

       

      <
Signature page follows >

      


      



      
        
          
             

             

            DLI-6195533v3


          

           


        

        
          16

          
            

          

        

        
           


          
            Micron
NTC CONFIDENTIAL

            


          

        

      


      IN
WITNESS WHEREOF, this Agreement has been executed and delivered as of the
Effective Date.

       

      


      MICRON
TECHNOLOGY, INC.

      


      


      


      By: /s/ D. Mark
Durcan                                                                      

      Name:  D.
Mark Durcan

      Title:   President
and Chief Operating Officer

      


      


      


      NANYA
TECHNOLOGY CORPORATION

      


      


      By: /s/ Jih
Lien                                                                      

      Name:  Jih
Lien

      Title:  President

      


      


      


      THIS
IS THE SIGNATURE PAGE FOR THE TECHNOLOGY TRANSFER AND LICENSE AGREEMENT ENTERED
INTO BY AND BETWEEN MICRON AND NTC

      


       

      


       

      


       


      
        
          
             

             

             

            DLI-6195533v3


          

           


        

        
          17

          
            

          

        

        
           


          
            Micron
NTC CONFIDENTIAL

            


          

        

      


      Schedule
1

      


      Background
IP—Process  Nodes

       

      [***]

       


      
        
          
             

            Schedule 1


            DLI-6195533v3


          

           


        

        
          - 18
-

          
            

          

        

        
           


          
            Micron
NTC CONFIDENTIAL

            


          

        

      


      


       

      Schedule
2

      


      Background
IP—Designs

       

      [***]

       


      
        
          
             

            Schedule 2


            DLI-6195533v3


          

           


        

        
          - 19
-

          
            

          

        

        
           


          
            Micron
NTC CONFIDENTIAL

            


          

        

      


      Schedule
3

      


      Existing
Entities

      


      


      


      
        	
                I.

              	
                Micron
      Existing Entities:

              


      

       

      
        	
                 
      

              	
                [***]

              


      

       

      


       

      


       

      
        	
                II.

              	
                NTC
      Existing Entities:

              


      

       

      [***]

       

      


      



      
        
          
             

            Schedule 3


            DLI-6195533v3


          

           


        

        
          - 20
-

          
            

          

        

        
           


          
            Micron
NTC CONFIDENTIAL

            


          

        

      


      Schedule
4

      


      Staged Process Flow for
Technology Transfer

      


      [***]

       

      


      
        
           

          Schedule 4


          DLI-6195533v3


        

        - 21
-